Three “Fixes” to Restoring Freedom and Federalism – Part 1

March 27, 2017 Frank Kuchar

In my last two essays (Badges? We Don’t Need No Stinkin’ Badges!” and The Real Problem with President Trump’s Tax Return) I touched on the subject of how the general government in Washington, DC is encroaching upon our freedom and chipping away at our liberties. The underlying problem that is precipitating this encroachment is a government that has expanded outside it’s intended, constitutionally-limited role. Because of this there has arisen a movement to amend our Constitution via a co-called “Convention of States.”

Such a convention has been grossly misrepresented by those who are promoting it, but to address those misrepresentations would take numerous, lengthy essays and it is not the point of this series of essays. What I wish to point out in this essay and the two to follow are three amendment changes that should be made a priority that would help to restore our freedom that is being destroyed and returning us to a true federal, republican form of government.

The first of these would be a repeal of the 16^th amendment. This amendment was pushed through by the progressives in both political parties (Woodrow Wilson and the Democrats along with Teddy Roosevelt and the northeastern Republicans) in the turn of the last century. As I’ve pointed out previously, this amendment granted the power to the government to tax every form of our earnings at any level they deem appropriate (during the 1950s’ the marginal tax rate exceeded 90%!). Such is a direct assault upon the concept of individual liberty as personal property rights, which includes our incomes, is the foundation of that liberty. If those wishing to amend our Constitution were serious about it, this would be their number one concern.

Not only does this amendment give the government plenary power over our earnings, our tax forms that are required for reporting our income to the taxing authorities capture even more information about us that the government has no business having any knowledge of. We are required to tell them how many dependents we have, what type, if any, retirement plans we have and if we received any benefits from them, how much we spent on health costs (which gives a window into our health status), what type of business we own (if we are self-employed), how much we donate to charities, what our occupation is, and on and on and on. I challenge anyone to give me the article, section and clause in our Constitution that grants the government the right to have any of this information, for such authority is non-existent.

Yes, our Constitution is not perfect – Ben Franklin said as much on the last day of the 1787 convention in Philadelphia when the newly minted Constitution was signed by the delegates. However, the Constitution has since been “toyed” with by individuals who did not rise to the level of foresight and wisdom of those who first framed it, and the 16^th amendment is a prime example that needs to be repealed.

Next week – the 17^th amendment.

-March 24, 2017

The Real Problem with President Trump’s Tax Return

March 17, 2017 Frank Kuchar

So now the whole world knows. In 2005 the Trumps paid $38 million in income taxes to the general government, or 25% of their taxable income. As we follow this “bombshell” dud in the news, pundits are assailing it on multiple fronts, but none are touching on the real problem with this incident.

Most of what I’ve heard is how whoever leaked this return committed a felony in that tax returns are, by law, to be kept private unless the individual chooses to voluntarily make them known. This incident is used as yet another example of how there are those on the left are trying to undermine the new president and his administration. All of that is true, but that is not the real problem.

Others have drawn comparisons of how much the Trumps paid in taxes compared to the percentages paid by others, especially those on the left to have attacked the president over how much he paid in taxes or whether or not he even paid any taxes. It has been rightly pointed out that the president paid an outrageous portion of his income in taxes – twenty-five cents out of every taxable dollar he earned. This illustrates how counter-productive any income tax system is, namely it punishes success and productivity. From an economic standpoint and the principle of individual freedom as enunciated by the British political philosopher John Locke in the 17^th century, this is a problem, but again, it is not the real problem.

Some commentators have rightly stated that this leak and it’s intended purpose of discrediting the president is illustrative of how dangerous it is for the government to have such information on us and how someone who has something against us can then use that information in an attempt to destroy our lives. This is getting close to the real problem with the president’s tax return, but it is not the real problem.

The real problem with the president’s tax return is that the government has possession of that information to begin with. Think about it. Last week I wrote about how the government is violating our fourth amendment rights (Badges? We Don’t Need No Stinkin’ Badges!) by collecting all of our communication data, but on our income tax returns they capture how much money we earn, perhaps what we spend it on, the status of our health (depending upon our medical deductions), our business dealings and investments, and much more, and they have been doing so since 1913 when the 16^th amendment was added to our Constitution.

This real problem with President Trump’s tax return is the same as with yours and mine – the government’s access to all sorts of our private information. Underlying this real problem is that which gives the government this access, namely the 16^th amendment. If those pushing to amend our Constitution were really serious about restoring individual freedom and our liberties, repealing the 16^th amendment would be one of their top three priorities (but more on that next week).

-March 17, 2017

Badges? We Don’t Need No Stinkin’ Badges!

March 10, 2017March 11, 2017 Frank Kuchar

Remember that line from the classic movie “Blazing Saddles”? Well that could now easily be the new motto of the United States, replacing the old and tired E Pluribus Unum. With the latest uproar in the war between President Trump and the leftists over whether or not his campaign and his administration was secretly wire tapped, many who were asleep for the past few decades are learning (or should be) that our government has to power to know everything about each and every one of us, whether warranted or not.

In case you were not aware, the Foreign Intelligence Surveillance Act of 1978 created a secret court system that was designed to issue warrants allowing government agencies to use electronic surveillance on foreign powers and those suspected of spying for them within the United States. In December 1981 President Reagan signed Executive Order 12333 that was intended to expand the flexibility of US intelligence agencies in gathering their data and sharing it with other agencies. It has since been amended and expanded by subsequent executive orders signed by President George W. Bush. This law and the courts it established, along with these executive orders are now the backbone upon which the National Security Agency today collects data on all citizens with or without warrants. Just before he left office, President Obama authorized the NSA to open up its treasure trove of data on us to a host of government agencies.

The NSA has its own search engine that covers almost one trillion private phone and internet records of millions and millions of US citizens. The collection and housing of this “metadata” is allegedly to catch those who would do us harm. Yet our Constitution is quite clear:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Let’s analyze this amendment against the backdrop of what I’ve shared above.

We have the right to be “secure”, that is protected and kept safe from.

We are to be secure in regards to:

Our persons, which would mean our bodies and any information pertaining to us.

Our houses, hence the notion of our homes being our “castle”.

Our papers, meaning anything we might write or communicate in any form or fashion, including electronic communications.

Our effects, which would include any kind of possessions we have.

We are to be secure against searches and seizures of these items that are deemed to be “unreasonable.” What is unreasonable is defined by what follows.

In order for the government to search, and if found, seize any of the items described as being protected, a warrant must be obtained from a judge. Those requesting the warrant must present evidence for the probable cause of a violation of law. Furthermore, they must swear by an oath that the evidence is indeed truthful and straight forward. Therefore, if such evidence is not sufficient to prove probable cause, then any search and/or seizure is to be deemed “unreasonable.”

Not only this, but the warrant must be specific – no blanket, open-ended, generalized warrant is permitted. The places, individuals and things that have been sworn to be reasonably suspected to be a violation of the law must be named; without this specificity, any search and/or seizure is again “unreasonable.” Yet our government today is gathering all of our communication data and transactions either with a broad generalized warrant, or no warrant at all.

When it comes to the law, governments are charged with the responsibility of ensuring that justice is served, which can only be done when the law protects us from lawbreakers, enemies, and yes, even our own government. Our government may say “Warrants? We don’t need no stinkin’ warrants”, but our Constitution that created it says differently.

-March 10, 2017

The President and the Press

March 3, 2017March 3, 2017 Frank Kuchar

In one of his speeches, the president had this to say about the press:

“During this course of administration, and in order to disturb it, the artillery of the press has been levelled against us, charged with whatsoever its licentiousness could devise or dare. These abuses of an institution so important to freedom and science, are deeply to be regretted, inasmuch as they tend to lessen its usefulness, and to sap its safety; they might, indeed, have been corrected by the wholesome punishments reserved and provided by the laws of the several States against falsehood and defamation; but public duties more urgent press on the time of public servants, and the offenders have therefore been left to find their punishment in the public indignation.”

The animosity between President Trump and the main stream media is nothing new; it is as old as our Republic itself. In 1798 the Federalists, who held the majority in Congress, the White House (John Adams was president), and appointees to the SCOTUS, passed, signed and upheld the Alien and Seditions Act of 1798. Regarding free speech the Act contained this section:

“SEC. 2. And be it farther enacted, That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.”

Fast forward to the administration of the “revered” Abraham Lincoln. You may be shocked to learn that the great champion of liberty repeatedly trampled on the Constitution and the freedoms guaranteed in the Bill of Rights. In regards to freedom of the press, he did tolerate criticism of himself and his policies, but only to an extent. For example, in May 1864, two newspapers in New York, the Journal of Commerce and The World, ran a fake news story that Lincoln was going to issue a presidential order to draft 400,000 men into the army. Lincoln ordered the two papers shut down and the publishers arrested and imprisoned. In addition, he had the agency that had transmitted the story, the Independent Telegraph System, shut down and its property seized by the military.

Yet today, because President Trump calls out the media for its failure to live up to its obligation to honestly report the news, or does not call on certain media outlets for questions in a press conference, he is excoriated by both the press and the progressives in Congress who are calling for his impeachment because they claim his actions make him an enemy of the first amendment. Those individuals are simply showing their hypocrisy and ignorance of history and an understanding of constitutional principles.

There are many other examples I could give in addition to the two I have provided above, but clearly President Trump’s criticisms hardly reach even the hem of the garment of the examples I cited. And that presidential quote I began with? It was part of President Thomas Jefferson’s second inaugural address. You see, the more things change, the more they remain the same.

-March 3, 2017

Reincarnation of the Sturmabteilung

February 24, 2017 Frank Kuchar

Reincarnation of the Sturmabteilung

Lately we are witnessing a growing number of anarchistic protestations around our country. Many are aimed at President Trump and his administration while others are aimed at individual conservatives or groups. In some cases these anarchists try to disrupt the meetings of groups whose political beliefs they oppose or town hall meetings of conservative members of Congress. In several instances they have turned violent, causing destruction of both private and public property, and at times even assaulted individuals attending the events.

The irony of all of these instances is they proclaim they are doing this in the defense of freedom and the rights guaranteed to us in our Bill of Rights, especially the right to free speech and peaceful assembly; yet their actions deny to those not in agreement with them the ability to exercise these rights. Instead, those who hold opposing views (as well as President Trump and his advisors) are called “Fascists” and “Nazis” by these protestors. Consequently, I think a short review of history of those who were truly “Fascists” and “Nazis” is in order to see just who the real “Nazis” are.

In 1921, Adolf Hitler created the Sturmabteilung, aka the SA or “Assault Division” of the Nazi Party. These “Brown Shirts” (or “Storm Troopers”) were responsible for intimidating political opposition to the Nazi Party by violence, including personal physical attacks, property destruction and silencing of free speech both of the press and the disruption of meetings of opposing political parties. They made a special target of the Jews, falsely depicting them as a target for arousing anger among the populace of Germany. In short, they had total disregard for the law and the liberties of individuals. In all respects they lived up to their credo, “All opposition must be stamped into the ground.” Their violence was based upon SA Sturmfuehrer Ernst Bayer’s attitude that “Possession of the streets is the key to power.”

The SA was not as much concerned with loyalty to the German people as they were to the ideology of the Nazi party and German nationalism. Their aim was to show the weakness of the Weimar Republic and the foolishness of democracy so as to gain power and impose their ideology upon the masses.

Consider these anarchists now causing a disruption in our society. They are rioting in the streets, smashing windows and setting properties on fire, just as their SA forebears did. Even police vehicles and equipment have been destroyed without fear of reprisal or arrest and imprisonment. In the 1920s’ the police in Germany became intimidated in standing up to the actions of the SA. Our police are not so much intimidated as they are handcuffed by the pc policies of the liberal politicians they must answer to, but the result is pretty much the same. Some of these ruffians have even taken to wearing a “ninja-like” uniform, although nothing to the extreme like the SA. However, these groups are in their infancy and being financed by big money leftists and business moguls, just like the SA was in the days of Hitler.

You do not hear of Tea Party, 912 organizations, and other conservative groups behaving in this manner, and yet they are the “Fascists”? These protesters need to take a good, hard look in the mirror of history. When they do, they will see themselves staring back, clad in brown uniforms with a red swastika armband around their left arms.

-February 24, 2017

Presidential Legitimacy

February 3, 2017 Frank Kuchar

I’ve had it with these Democrat leaders and their minions spouting off that Donald Trump is an illegitimate president. In making such an inaccurate claim they expose their ignorance of the English language, our Constitution and the principles of federalism. In short, they are behaving in a petulant and childish manner, hardly worthy of leadership in our great country.

First, the term “illegitimate” is defined to be “not authorized by the law; not in accordance with accepted standards or rules.” By claiming that Donald Trump’s presidency is “illegitimate” they are stating that his ascension to that office was “not authorized by the law.” Article VI of our Constitution states “This Constitution,…shall be the supreme Law of the Land.” This being the case we must then ask “Was Donald Trump elected in accordance with the dictates of the Constitution, which is the Law when it comes to such a matter?” Article II, Section 1 of the Constitution regarding the election of the President states he shall “be elected as follows: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…” The 12^th Amendment then spells out how these Electors from the states are to select a new President: “The Electors shall meet in their respective states, and vote by ballot for President and Vice President…The person having the greatest number of votes shall be the President.” In the 2016 Presidential election, Donald Trump received 306 electoral votes and Hillary Clinton only 232. Donald Trump received “the greatest number of votes”, and therefore, according to “the Law”, (i.e., the Constitution as quoted above), he is the legitimate President of these United States.

Having now educated the Democrats regarding their ignorance of the definition of English terms and the Constitution, there is their final area of ignorance, namely that of federalism. Those protesting Donald Trump as a legitimate president repeatedly fall back on the fact that he failed to win the popular vote (a matter of suspect given the number of illegals voting in California for instance, and other voting issues). They talk about being a democracy when we are a federal republic. Simply put, this means that citizens within a state have democratically elected individuals to serve as “Electors”, who in turn, in accordance with the law of the Constitution, select the President. The reason the founders set up this system was to ensure that smaller states would not be ignored in the selection of the individual who would hold power over them. This electoral arrangement preserves the power of the states as a check against one another so that a few states do not dictate to the many.

As for correcting their petulant and childish behavior the only solution is the one recommended by James Madison in the Federalist Papers – replacing them in the next election cycle. Our nation deserves and needs better than what we are witnessing from these individuals.

-February 3, 2017

Health Insurance, Obamacare and Government

January 25, 2017 Frank Kuchar

Congress and our new President are pushing to “repeal and replace” Obamacare. I wholeheartedly applaud the goal of repealing Obamacare. However, the greater issue surrounds its passage to begin with and the follow up notion of “replacing”.

Obamacare is a clear violation of the statement laid down by James Madison in Federalist 45 that “The powers delegated by the proposed Constitution to the federal government are few and defined.” Nowhere in the Constitution’s enumeration of the federal government’s powers is there any hint of a reference to its operation in the realm of health care. Consequently, from this basic truth, Obamacare is unconstitutional and on that ground demands repeal.

However, that same principle also demands that Congress and President Trump not seek any kind of “replacement” by the federal government. The proper role of the government in healthcare from the standpoint of the Constitution is no role at all. If anything, it could be argued that the power of Congress to regulate commerce among the several states would authorize it to pass legislation which would allow insurance companies located in one state to “sell” its services in all other states. This commerce clause in Article I Section 8 was inserted to prevent the states from charging tariffs on goods sent into them from other states, and in a sense insurance services could be likened unto an importation of a product from one state into another. Hence, Congress legislating that all states allow insurance companies in one state to sell in another would be within its constitutional purview. (It seems such action should be unnecessary as Congress didn’t have to pass legislation requiring states to allow Chevrolet or Ford to send their products from Michigan and other locations to all of the other states, so why should it be required to force states to allow insurance companies to “sell across state lines”?)

Those who oppose this move of repealing the so-called “Affordable” Care Act claim that access to health insurance is a “right”. I have addressed this matter in previous essays in more detail, but simply put, a “right” is something that has always been and will always be – something neither created nor granted by man. Obviously, a cursory examination of the history of health insurance indicates that it fails this basic premise of “rights.” The concept of health insurance is less than 100 years old and has changed and been modified considerably since its introduction into our society. Therefore, access to health insurance cannot be a right in the same vein as the right to life, liberty and property. There is a reason why companies that provide health insurance coverage options to their employees style it as a “benefit”, administered by their “Benefit Department”. Benefits are something that can be given and taken back, unlike rights which cannot be.

I would hope that Congress and President Trump will indeed repeal Obamacare in its entirety and then butt out and allow the free market to provide a variety and innovative options from which we can choose coverage that is both affordable and appropriate for our individual needs.

-January 27, 2017

“Not the Government We Fought For”

January 6, 2017January 6, 2017 Frank Kuchar

In his Notes on the State of Virginia, Query XIII Thomas Jefferson left us an astute observation about liberty and government. It contains a warning about how corruption and subsequent tyranny can and will creep into government – even one that is a representative government chosen democratically by the people.

Unfortunately, as we observe what is transpiring in all three branches of our current crop of leaders, especially the actions of the outgoing administration, I think we would do well to read and reflect upon his entire essay in this Query.

“4. All the powers of government, legislative, executive, and judiciary, result to the legislative body [in the Virginia Constitution of 1776]. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. 173 despots would surely be as oppressive as one. Let those who doubt it turn their eyes on the republic of Venice. As little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason that convention, which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive and judiciary department should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. But no barrier was provided between these several powers. The judiciary and executive members were left dependant on the legislative, for their subsistence in office, and some of them for their continuance in it. If therefore the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can it be effectual; because in that case they may put their proceedings into the form of an act of assembly, which will render them obligatory on the other branches. They have accordingly, in many instances, decided rights which should have been left to judiciary controversy: and the direction of the executive, during the whole time of their session, is becoming habitual and familiar. And this is done with no ill intention. The views of the present members are perfectly upright. When they are led out of their regular province, it is by art in others, and inadvertence in themselves. And this will probably be the case for some time to come. But it will not be a very long time. Mankind soon learn to make interested uses of every right and power which they possess, or may assume. The public money and public liberty, intended to have been deposited with three branches of magistracy, but found inadvertently to be in the hands of one only, will soon be discovered to be sources of wealth and dominion to those who hold them; distinguished too by this tempting circumstance, that they are the instrument, as well as the object of acquisition. With money we will get men, said Caesar, and with men we will get money. Nor should our assembly be deluded by the integrity of their own purposes, and conclude that these unlimited powers will never be abused, because themselves are not disposed to abuse them. They should look forward to a time, and that not a distant one, when corruption in this, as in the country from which we derive our origin, will have seized the heads of government, and be spread by them through the body of the people; when they will purchase the voices of the people, and make them pay the price. Human nature is the same on every side of the Atlantic, and will be alike influenced by the same causes. The time to guard against corruption and tyranny, is before they shall have gotten hold on us. It is better to keep the wolf out of the fold, than to trust to drawing his teeth and talons after he shall have entered.“

I fear we now have the “wolf” in the midst of our “fold”, and as that old saying goes, “Now is the time for all good men to come to the aid of their country.” It is time we ceased to be sheeple and instead stood up and defended our liberties being devoured by these “wolves.”

-January 6, 2017

Article IV and the Antiquities Act of 1906

December 30, 2016 Frank Kuchar

President Obama just used his “pen” again to nationalize large swaths of federal land in the western states, removing them from development, as well as hundreds of millions of acres of the ocean from exploration. This action raises a number of constitutional issues.

First is the issue of just who has the constitutional right to these lands and seas? Laws have been passed regarding federal authority over these areas, but the larger question remains, are they constitutional? Article I, Section 8 of the Constitution lists the properties that the federal government has the authority to own, and all of these areas addressed by President Obama (and many presidents prior to him) are not included in that specific list. So if the federal government has no right to these lands/seas, then it has no authority to dictate to the states how the land may or may not be used. The lands belong to the states within whose boundaries they lie; to argue that they ceded ownership to the federal government and therefore legitimizes federal ownership does nothing to change the fact that the Constitution says nothing about such ownership rights.

When President Jefferson sought to acquire what came to be known as the Louisiana Purchase, he had such grave misgivings about the constitutionality of such an acquisition that he pushed for a constitutional amendment that would grant federal ownership to such properties. In 1803 Jefferson wrote “The General Government has no powers but such as the Constitution gives it… it has not given it power of holding foreign territory, and still less of incorporating it into the Union. An amendment of the Constitution seems necessary for this.” The land belongs to the states. The ocean shore out to the international limit belongs to the states. It is they who have the constitutional authority over those areas and not the federal government.

This brings us to Article IV, Section 3 of the Constitution. It states that “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Furthermore, Article VI, clause 2 goes on to state that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof;…shall be the supreme Law of the Land.” Any law, therefore, which the enforcement of or granting of powers is in conflict with the Constitution is not “in Pursuance of” the Constitution, and must of necessity be null and void.

The Antiquities Act of 1906 was passed to preserve archeological sites on public lands from looters. It gave the President absolute authority to single-handedly designate any federal public lands as national monuments, and thus protect it from looters. This Act is the basis for President Obama’s actions, and yet this law clearly flies in the face of the Constitution’s granting to Congress and Congress only the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”

The states should stand together and nullify this unconstitutional Act and take back those lands and seas that rightfully belong to them, with the exception of those few constitutionally authorized properties that Article I, Section 8 grants to the federal government.

-December 30, 2016

Why Congress MUST Stay in Session

December 9, 2016 Frank Kuchar

In most instances I would say the less time Congress is in session, the safer our freedom and liberties are. However, for the upcoming holiday break and the time between the swearing in of the new congress and the inauguration of President-elect Trump, this is not the case – at least for this year.

My concern is the vacancy on the Supreme Court left by the unfortunate passing of Justice Antonin Scalia. In March of this year President Obama fulfilled his constitutional duty of nominating Merrick Garland to fill that vacancy on the court. However, the Senate has stated they will not take up deliberations on confirming his appointment, which is both their constitutional responsibility and prerogative. This leaves us at a stalemate over the vacancy.

So what’s this got to do with Congress taking its traditional holiday adjournment and the break between their swearing in and the presidential inauguration? Article II, Section 2, Clause 3 of the Constitution states that “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” In addition, Article I, Section 5, Clause 4 states that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.”

Should both houses of Congress agree to adjourn for more than three days during either of the two time periods I’ve mentioned, then President Obama could appoint a liberal, progressive judge to the Supreme Court without the consent of the Senate, and that individual would sit on the court until a new Congress is elected in 2018, at which time the Senate could confirm or deny confirmation, in which case that individual would be removed from the Court and President Trump would be free to nominate a conservative replacement. Indeed, there are some in the Democrat caucus in Congress that are encouraging President Obama to do just this. Yet if Congress remains in session he could not constitutionally make any appointments.

Hopefully the Republicans will not be so arrogant to think that President Obama would not do this or that if he did, they could undo the appointment in 2019. There are two serious dangers with this thinking. First, President Obama has shown in the past that he is indeed willing to make controversial recess appointments. In January 2012 he appointed three liberal, pro-union individuals to the National Labor Relations Board and it wasn’t until June 2014 that the Supreme Court ruled unanimously that the appointments were illegal. By then, however, those three individuals had done much damage in their rulings.

Second, consider what would happen if the Republicans fail to maintain their majority in the Senate in the 2018 elections. Then the Democrat-controlled Senate would confirm the appointment and that justice would have his/her life-time appointment to the Court. Not only this, but even if the Republicans maintained their majority status in the Senate in the 2018 elections, that would still give the Court a liberal majority for two years, during which time much mischief could be done to our Constitution, our freedom and our liberties.

So, there you have it. It is imperative that Congress put the wellbeing of the country and the future of the Supreme Court above their desire to “take a break” from their elected duties. Many in our military won’t be home for the holidays because of their duties in service to our country; why should members of Congress be any different?

-December 9, 2016